Flint water crisis victims increasingly turn to courts, but face big obstacles
By Lenny Bernstein and Brady Dennis
February 10 at 10:43 PM
Thousands of people in Flint, Mich., are turning to the courts to seek compensation for the contamination of their water supply. But, despite clear evidence of widespread lead exposure, they face formidable legal obstacles and long waits for any money they ultimately might receive, according to experts.
Ten separate lawsuits, including several class-action suits, have been filed so far in federal, state and county courts, as well as in a special court established by Michigan to hear claims against the state. The remedies sought include compensation for lead poisoning, refunds for water bills and damages for deaths caused by a Legionnaire’s disease outbreak allegedly linked to the tainted water.
One class-action lawsuit asks a judge to order the state to quickly restore drinkable water for Flint’s 95,000 residents. Another, which seeks damages, already has attracted 2,000 potential plaintiffs. Yet another was filed by a couple who say their 2-year-old daughter may already have been harmed by lead in the water.
“On the face of it, the lead scandal in Flint, Michigan, looks like it should be a billion-dollar mass tort,” said Nora Freeman Engstorm, a professor and expert on tort law at Stanford University. “You have a clear villain . . . and you have very sympathetic plaintiffs.” But, she said, “the most likely thing that happens to you in this country when you are negligently injured is you never see a penny.”
A similar saga in the District shows how long the legal journey can take. Half a dozen lawsuits over lead-tainted water, the first of which was filed in 2009, continue to plod through the courts. A judge rejected a bid for a class-action filing in 2013. Though the facts in Washington are different from those in Flint, no one who has claimed harm from contaminated water, discovered as early as 2001, has collected a dime.
The main obstacle for the Flint legal actions is the well-established doctrine of “sovereign immunity,” which shields state and federal governments from lawsuits except in a few, narrowly drawn circumstances. “The state of Michigan is immune from suit. Full stop,” said Gil Seinfeld, a professor at the University of Michigan’s law school. “This is recognized as a matter of law.”
But attorneys who have filed some of the lawsuits said they are confident they will secure big damages. And an expert not connected to the case agreed the lawsuits could succeed.
“The concept is that the government is taking away life, liberty or property without due process,” said John Fiske, a California environmental lawyer who specializes in water-related cases. “What we’re seeing in this case is that the right to clean water, especially if you’re paying for it, should not be taken away.”
The number of citizens lining up to sue grows almost daily. Many are driven by health concerns and plunging property values — and the sense that the legal system might right the wrongs that have occurred in Flint.
“The only recourse we have left after all the marching, the meeting, the protesting, the petitioning, the phone calls and the basic begging for them to do their job and help us, is to go to the courts,” said Melissa Mays, a mother of three who has signed on to five different lawsuits.
But even as people flock to the courts, they face significant legal hurdles in addition to sovereign immunity.
Individuals who may be responsible for the catastrophe have a form of protection, known as “official immunity,” that raises the bar for anyone trying to prove they or government insurance policies should pay damages, according to Seinfeld, the University of Michigan law professor. The city of Flint doesn’t have immunity, he added, but its dire financial straits make it an unappealing target for anyone seeking compensation.
But some attorneys behind the lawsuits say they believe that they can overcome the roadblocks.
Brian McKeen, an attorney for Luke Waid and Michelle Rodriguez, the parents of the 2-year-old girl, said that one exception to sovereign immunity is gross negligence by the individuals involved. That should be possible to prove, he said, because the state has admitted that it neglected to ensure that anti-corrosive chemicals were added to the water when Flint switched its water supply to the Flint River.
[just] negligent; it was intentional,” said Trachelle Young, a former Flint city attorney who is now representing local families in several class-action lawsuits. “Immunity was not meant to protect someone when they are not carrying out their duties in good faith.”
Attorney Geoffrey N. Fieger is also accusing several state employees of gross negligence in the four Legionnaire’s disease cases in his $100 million lawsuit. Michael L. Pitt, the attorney in yet another class-action suit, said his goal is to create a fund that would pay to treat the damaging effects of lead on children’s neurological systems. He said the fund could require $1 billion.
Yet another suit may skirt the sovereign immunity problem by asking mainly for a judge to order officials to provide Flint’s residents with clean water.
“We’re not asking for monetary damages, so we don’t run into the problem of sovereign immunity that other claims might have,” said Dimple Chaudhary, a senior attorney with the Natural Resources Defense Council, one of the groups behind the effort. “What we’re asking for is for government officials to take actions to solve the problem.”
David Murray, a spokesman for Michigan Gov. Rick Snyder (R), said in an email that “it would be inappropriate to discuss pending litigation.” The Flint city attorney’s office did not respond to a request for comment Wednesday.
Should the cases ever see a courtroom, Stanford’s Engstorm said, the plaintiffs will face a difficult task proving it was lead in the water — and not lead in other parts of the environment or a disease — that caused each child’s problems. “Specific causation in lead cases is really difficult,” she said.
That was one problem with the District case. A judge declined to certify a class and allow a mass claim in part because the plaintiffs had too few common characteristics.
The single biggest obstacle to compensation is the victims themselves: Excluding motor vehicle collisions, only 10 percent of the people who suffer accidental injuries ever seek redress, and only 2 percent ever file suit, according to a 1991 study of the tort system by the Rand Institute for Civil Justice.
That may not turn out to be true in Flint, where anger against government agencies has stirred up a huge pool of potential plaintiffs — possibly all 95,000 Flint residents, or at least the 9,000 children exposed to lead. Young said roughly 100 local residents a day — more than 1,500 and counting — have been signing up to join her lawsuits.
Fiske said settlements should be reached with the people of Flint quickly. “I would want to come to the table right away, regardless of the technical aspects of the law, and morally and legally try to make this right,” he said.
“This is not the one you play hardball with. . . . You just do the right thing.”
Alice Crites contributed to this report.